Death sentences imposed by courts could be replaced with life imprisonment in the coming days if the proposed amendments to the Penal Code Act become law.
The Penal Code (Amendment) Bill 2023 by leader of minority in the National Assembly Opiyo Wandayi, seeks to erase the imposition of the death sentence against capital offenders as convicted by the courts of competent jurisdiction from the country’s statute books.
The Bill is currently before the Justice and Legal Affairs Committee (JLAC) of the National Assembly for pre-publication scrutiny.
Appearing before JLAC on Thursday last week, Mr Wandayi said that the Bill seeks to delete each section in which the words “sentenced to death” appear while replacing them with the words “life imprisonment.”
The Bill specifically targets sections 40 (3), 60, 204, 296 (2) and 297 (2) of the law. The lawmaker has also proposed changes to the Prisons Act, the Legal Aid Act and the Preservation of Public Security Act in the Bills before JLAC chaired by Tharaka MP George Murugara. The changes, he says, will align the laws with the constitution, which guarantees the right to life.
“Kenya has ratified the protocol to the international covenant on civil and political rights which decrees abolition of death penalty by all state parties. Kenya, being a state party, has no choice but to reform her laws to comply with the constitution,” Mr Wandayi told the committee.
All the committee members supported Mr Wandayi’s proposals, except Kirinyaga Woman Rep Jane Njeri.
“I do have my reservations about the proposal to abolish the death penalty,” said Ms Njeri.
“We need to entrench and activate the death penalty. If people steal public resources, they should be hanged. We just need to give an example of one person. I believe there should be balance and consequences for action,” she added.
Mr Wandayi told the committee that without life, other rights cannot be enjoyed “since the right to life forms the basis for the enjoyment of other human rights.”
Section 204 of the Penal Code that Mr Wandayi wants repealed, states that any person convicted of murder shall be sentenced to death and sections 296 and 297- for cases of robbery and attempted robbery respectively.
Under the Prisons Act, Mr Wandayi wants section 59 that defines the manner of execution of persons sentenced to death, repealed.
“Since I am proposing the abolition of the death sentence, there is no need to have the manner in which persons sentenced to death should be hanged until they die,” he told the committee.
Mr Wandayi also wants section 7 of the Preservation of Public Security Act amended by deleting subsection (2) (a) that provides for the making of regulations for the imposition of death penalty among others.
A total of 6,058 prisoners have been sentenced to death since 2011, according to the Kenya National Bureau of Statistics (KNBS) including former police officer Fredrick Leliman, who is on death row over the murder of lawyer Willy Kimani and two others.
“The reasoning and factors behind the death penalty cannot withstand serious examination and, therefore, the death penalty ought not to be retained in our laws. In any case, Kenya appears to be a reservationist state in implementation of the death penalty,” the Ugunja MP says.
While the law still recognises the death penalty as a mandatory punishment for capital offences, the last known execution took place in 1986 and involved former military men - Hezekiah Ochuka and Pancras Oteyo.
Their execution followed their roles in the failed 1982 coup, a treasonable offence that attracts a death sentence.
Since then, there has been an informal moratorium on executions. For instance, in August 2009, former President, the late Mwai Kibaki, commuted about 4,000 death row prisoners’ sentences to life imprisonment, while former President Uhuru Kenyatta, in October 2016, commuted all death sentences to life imprisonment, removing 2,747 offenders from death row.
Mr Wandayi argues that to support the death penalty is to teach that violence and killing is an acceptable way of dealing with serious crimes, noting that the use of the death penalty only lowers the standards of “our government to the mentality of the murderer itself.”
His proposed changes are informed by the Supreme Court judgment of December 14, 2017 that effectively settled the death penalty debate in the case of Francis Karioko Muruatetu and another versus the Republic.
The Supreme Court held that the mandatory nature of death sentence that courts were using to impose the sentence as provided for under law was unconstitutional.
“The death sentence as provided for under Section 204 of the Penal Code is hereby declared unconstitutional. For the avoidance of doubt, this order does not disturb the validity of the death sentence as contemplated under Article 26 (3) of the Constitution,” the Supreme Court ruled.
This means that the courts are not compelled to pass death sentences on offences that originally attracted the punitive sentence before the new constitution was promulgated on August 27, 2010.
As at December 2017, there were 3,998 murder cases pending before the High Court stations in the country and 3,430 cases of robbery with violence cases were before the Magistrates Courts.
Former Solicitor-General Ken Ogeto argues that although the constitution guarantees the right to life, “that right is not absolute, it is qualified.”
“You can be deprived of the right to life under a sentence passed by the court,” says Mr Ogeto.
Law expert Mr Bob Mkangi, who was among a team of experts that drafted the 2010 constitution, says that the only way to lose right to life should be through the judicial pronouncements, not through the dictates of the law.
“Our country is not in favour of the death sentence, so, why have it in our statute books?” Mr Mkangi wonders.
